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2. Program on Humanitarian Policy
and Conflict Research (HPCR)
Harvard University
October 21, 2010
Extending the Front Line?:
The Use of Force and International Law

3. Mr. Claude Bruderlein
Director
Program on Humanitarian Policy and Conflict Research
at Harvard University
Ms. Naz Modirzadeh
Associate Director
Program on Humanitarian Policy and Conflict Research
at Harvard University
Extending the Front Line?:
The Use of Force and International Law
Live Webseminar
October 21, 2010

4. This Live Seminar will examine legal and policy challenges pertaining to the
use of force outside traditional zones of military operations, including
allegations of "targeted killing" and "extrajudicial killing." By reviewing
recent counterterrorism operations and litigation concerning whether those
operations are lawful, this Live Seminar will look into the following
questions:
 How do the jus ad bellum (the law governing the resort to force) and
the jus in bello (the law governing conduct of hostilities) interact, if at all,
in counterterrorism operations?
 How, if at all, do contemporary counterterrorism operations affect legal
standards pertaining to targeting, detention, interrogation, and fair trials?
 What characteristics -- such as temporal and geographic factors, as well
as the intensity of hostilities -- determine whether a specific use of force
triggers a law enforcement paradigm or a military action paradigm?
These questions will be reviewed by reference to recent counterterrorism
operations involving the use of force outside traditional notions of the
“battlefield."

5. Andrew March is Assistant Professor (Adjunct) of Law at
Yale Law School and Assistant Professor in the Department
of Political Science at Yale University. His research interests
are in contemporary political philosophy, Islamic ethics and
political thought, and comparative political theory. His book
Islamic and Liberal Citizenship: The Search for an
Overlapping Consensus, was just published by Oxford
University Press (2009). He has published articles on various
aspects of Islamic legal and ethical thought. He is a graduate
of the University of Pennsylvania and the University of
Oxford.

6. Panelists
Laurie R. Blank
Director
IHL Clinic, Emory University School of Law
Jonathan Hafetz
Associate Professor
Seton Hall Law School
Kevin Jon Heller
Senior Lecturer
Melbourne Law School

7. Laurie R. Blank is the Director of the International Humanitarian Law Clinic
at Emory University School of Law, where she teaches international
humanitarian law and works directly with students to provide assistance to
international tribunals, non-governmental organizations and law firms around
the world on cutting edge issues in humanitarian law and human rights.
Professor Blank is the project director of Mind the Gap: Creating a Toolbox
to Assess the Applicable Law Along the Continuum of Conflict, a
multinational project to examine the legal frameworks in stability operations challenges posed by complex
and develop training and other tools to meet those challenges on the ground. She is also the co-director of
a multi-year project on military training programs in the law of war and the co-author of Law of War
Training: Resources for Military and Civilian Leaders (USIP 2008, with G. Noone, second edition 2011).
Before coming to Emory, Professor Blank was a Program Officer in the Rule of Law Program at the
United States Institute of Peace. At USIP, she directed the Experts’ Working Group on International
Humanitarian Law, in particular a multi-year project focusing on New Actors in the Implementation and
Enforcement of International Humanitarian Law.
She is the author of numerous articles and opinion pieces on topics in international humanitarian law,
including, most recently, “Defining the Battlefield in Contemporary Conflict and Counterterrorism:
Understanding the Parameters of the Zone of Combat,” Georgia Journal of International and
Comparative Law (forthcoming 2010-2011), and “Finding Facts But Missing the Law: The Goldstone
Report and Lawfare,” Case Western Reserve Journal of International Law (forthcoming 2011). Professor
Blank received a B.A. in Politics from Princeton University, an M.A. in International Relations from The
Paul H. Nitze School of Advanced International Studies (SAIS) at The Johns Hopkins University, and a
J.D. from New York University School of Law. She has spoken in the U.S. and abroad on topics including
the laws of war, clinical work in international humanitarian law and transitional justice.

8. The Legal Framework
 Jus in Bello (IHL or the Law of Armed
Conflict) – the law governing the conduct of
hostilities and the protection of persons and
objects during armed conflict
 Jus Ad Bellum – the law governing the use
of force, including the UN Charter framework
and the international law of self-defense

9. Counterterrorism Operations
 If part of an armed conflict, governed by the law of armed
conflict (IHL)
 Geneva Conventions
 Additional Protocols
 Customary international law
 Fundamental principles of distinction, proportionality, military
necessity and humanity
 If outside an armed conflict/not part of an armed conflict,
governed by the international law of self-defense (jus ad bellum)
 Necessity and Proportionality
 Invoking self-defense against a non-state actor

10. Where Is the Armed Conflict?
-- Defining the Zone of Combat
 Traditional concepts – belligerency and neutrality –
are of limited use
 Using factors from IHL to define the zone of
combat
 Hostilities
 Government response
 Territory

11. Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law
School. He focuses his research on national security, human rights,
immigration, and constitutional law. He joined Seton Hall Law School as
an Associate Professor in 2010. Professor Hafetz is the author of the
forthcoming book Habeas Corpus after 9/11: Confronting America’s
New Global Detention System (NYU Press 2011). He is the co-editor
(with Mark Denbeaux) of The Guantanamo Lawyers: Inside a Prison Outside the
Law (NYU Press 2009). Professor Hafetz’s scholarship has appeared in numerous
publications, including the Yale Law Journal, Fordham International Law
Journal, American University International Law Review, Fletcher Forum of World
Affairs, and Fordham Urban Law Journal.
Prior to joining Seton Hall, Professor Hafetz was an attorney at the ACLU’s National
Security Project. Professor Hafetz has served as counsel in leading national security
habeas corpus cases, including Al-Marri v. Spagone, which involved the military detention
of a legal U.S. resident, and Munaf v. Geren, which involved the detention of two
American citizens in Iraq.
In 2010 was appointed to serve on the New York City Bar Task Force on National
Security and the Rule of Law. Professor Hafetz earned his J.D. from the Yale Law School.
He holds an M. Phil in Modern History from Oxford University and a B.A. from
Amherst College.

12. Background
Al-Aulaqi v. Obama
Al-Aulaqi v. Obama is a federal lawsuit filed in U.S. District Court for the
District of Columbia by Nasser Al-Aulaqi on behalf of his son, Anwar al-
Aulaqi.
According to news reports, Anwar Al-Aulaqi, an American citizen in
Yemen, has been placed on a “kill list” by the U.S.
The U.S. government claims Anwar Al-Aulaqi is the leader of al Qaeda in
the Arabian Peninsula (AQAP), a Yemen-based terrorist group that has
claimed responsibility for numerous terrorist attacks against the U.S.
The lawsuit was filed by the ACLU and Center for Constitutional Rights.

13. Legal Claims
 The suit asserts claims under the Fourth and Fifth Amendments to the U.S.
Constitution, challenging the imminent deprivation of Al-Aulaqi’s life without due
process of law (i.e., as an extrajudicial killing).
 Since Sept. 11, 2001, the U.S. has reportedly carried out numerous “targeted
killings” in connection with the global “war on terror.”
 Targeted killings have been carried out by the U.S. through unmanned aerial
vehicles (such as CIA-operated Predator drones)
 The plaintiff in Al-Aulaqi seeks a judicial declaration that Constitution and
international law prohibit the U.S. government from carrying out targeted killings
outside of armed conflict except as a last resort to prevent specific, concrete, and
imminent threat of death or serious physical injury.
 The suit further seeks an injunction prohibiting the targeted killing of Anwar al-
Aulaqi and requiring the U.S. government to disclose the standards under which it
determines American citizens may be targeted for death.

14. The Parties’ Arguments
 To obtain a preliminary injunction, the plaintiff must demonstrate,
among other things, that there is a substantial likelihood of success on the
merits of the action.
 Plaintiff argues that the Constitution and international law prohibit the
use of lethal force against civilians outside of armed conflict except as a
last resort to prevent an imminent attack that is likely to cause death or
serious physical injury.
 Plaintiff additionally challenge the secrecy and absence of standards
under which targeted killings are carried out by the U.S.
 The U.S. government, in its response, submits several threshold
arguments for dismissing the case, without the court ever reaching the
question of whether the targeting killing of Al-Aulaqi would be legal.
These arguments include the following:

15. The Parties’ Arguments, Cont’d
 Lack of “next friend” standing: that Al-Aulaqi’s father cannot bring suit on his
son’s behalf because his son does not, in fact, lack the ability to access the courts.
 Non-justiciable political questions: that the federal courts (as opposed to the
political branches) are not competent to decide when and whether the U.S. may use
lethal armed force in an armed conflict nor to decide the scope (geographic or
otherwise) of the armed conflict between the U.S. and al Qaeda and “associated”
forces.
 “State secrets”: that information protected by the military and state secrets
privilege is necessary to litigate plaintiff’s claims and the case, therefore, cannot
proceed without significant harm to the national security of the United States.
 The government says little about the merits, claiming only that the President is
authorized to use force against Al-Aulaqi under the 2001 Authorization for Use of
Military Force (AUMF), a joint resolution passed by Congress following 9/11,
because AQAP is “associated” with al Qaeda, an organization with which the U.S. is
at war.

16. Larger Questions and Implications
Al-Aulaqi v. Obama, however, not only challenges targeted killing; more broadly, it
contests the proposition that there is a, legally speaking, a global “war on terror” as
defined by the Bush and Obama administrations.
The suit thus addresses the U.S. government’s claim that it can effectively treat the
entire world as battlefield in a territorially-unbounded armed conflict against
terrorism, a concept that has underpinned other U.S. national security policies since
9/11, including the detention of “enemy combatants” at Guantánamo and elsewhere
and the use of military commissions to try terrorist suspects.
The suit also tests how far the U.S. government’s asserted right to use armed force
against (and, by implication to both kill and detain militarily) those it claims are
“associated” with al-Qaeda (here, the Yemen-based group of which the government
says Al-Aulaqi is a part), despite the dubious application of the principle of co-
belligerency outside the context of international armed conflict (i.e., a conflict
between nation-states)

17. Larger Questions and Implications
 The suit, however, faces numerous hurdles and it is unclear whether a court will
ever reach the merits and address the legality of targeted killing.
 Indeed, to date, after almost a decade of litigation, many critical questions about
the “war on terror”—including its permissible scope under domestic and
international law—have yet to be determined by the U.S. courts.
 Further, because the claims in this suit rest heavily on Al-Aulaqi’s U.S. citizenship,
any ruling that addresses the merits may turn in whole or in part on that citizenship
status, thereby limiting or blunting the suit’s potentially broader applications.
 If the courts do, however, address the merits, it will both reaffirm the importance
of judicial review in national security matters and help resolve questions about the
nature and scope of the armed conflict against al Qaeda left unaddressed by the
Supreme Court’s prior “enemy combatant” detention/military commission decisions
such as Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush.

18. Kevin Jon Heller is currently a Senior Lecturer at
Melbourne Law School, where he teaches international
criminal law and criminal law. He holds a JD with distinction
from Stanford Law School, an MA with honours in literature
from Duke University, an MA and BA, both with honours, in sociology
from the New School for Social Research, and will receive his Ph.D in
law from Leiden University in early 2011. His edited book The
Handbook of Comparative Criminal Law will be published by Stanford
University Press in October 2010 and his book The Nuremberg Military
Tribunals and the Origins of International Criminal Law will be
published by Oxford University Press in March 2011. He has been
involved in the International Criminal Court’s negotiations over the crime
of aggression, served as Human Rights Watch’s external legal advisor on
the trial of Saddam Hussein (whose lawyers cited his academic work in
their appeals), and consulted with a number of defendants at the ICTY
and ICTR. He is currently serving as one of Radovan Karadzic's
formally-appointed legal associates.

19. Thesis: the U.S. as
international-law bricoleur
Elision 1: Jus ad bellum and international
human rights law
Elision 2: Jus in bello and international human
rights law
Elision 3: International armed conflict and
non-international armed conflict

20. Questions and comments

21. Panelists
Laurie R. Blank
Director
IHL Clinic, Emory University School of Law
Jonathan Hafetz
Associate Professor
Seton Hall Law School
Kevin Jon Heller
Senior Lecturer
Melbourne Law School

22. Hosts
Claude Bruderlein
Naz Modirzadeh
Technical Director
James Brockman
Production Team
Christina Blunt,
Dustin Lewis, & Anaïde Nahikian

23. Program on Humanitarian
Policy and Conflict Research
(HPCR) Harvard University
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